OPINION OF THE COURT
Plaintiff sues defendants to recover damages for alleged defamation. Defendants move pursuant to CPLR 3211 (a) (7) for an order dismissing the complaint for failure to state a cause of action. Plaintiff opposes.
I. Background
Unless otherwise indicated, the following facts are taken from plaintiff’s complaint, and are accepted as true for purposes of this motion.
Plaintiff is a “political strategist and public relations consultant” and a frequent commentator on television news channels and other media outlets, offering “political opinion and analysis from the Republican perspective.” (NY St Cts Elec Filing [NYSCEF] Doc No. 19, exhibit A, ¶¶ 9-11.) Defendant Donald J. Trump was at all relevant times a candidate for the 2016 Republican nomination for the Presidency of the United States. {Id. f 13.) Defendant Donald J. Trump for President, Inc., was the campaign organization for Trump’s presidential candidacy. (Id. 1 14.) Defendant Lewandowski was the Trump organization’s campaign manager. {Id. ¶ 12.)
On or about May 18, 2015, plaintiff received a message from nonparty Jim Dornan, then working for the campaign, asking if she would be interested in becoming the campaign’s communications director. (Id. ¶ 22.) The following day, plaintiff met with Dornan and Lewandowski, and according to plaintiff, they expressed interest in working with her, with Lewandowski asking for her salary requirements. (Id. ¶¶ 24, 27.) Later that day, Dornan sent a message to plaintiff, stating that Lewandowski wanted to meet with her again. By email to Lewandowski, plaintiff provided her salary requirements and indicated her interest in a position with the campaign. (Id. ¶¶ 28-29.)
On June 9, 2015, plaintiff met with Dornan and Lewandowski for a second time. (Id. ¶ 30.) At this meeting, during a discus
On June 16, 2015, Trump formally announced his candidacy for President. In the months following his announcement, plaintiff frequently appeared on television as a commentator, and posted comments on social media sites, including Twitter, both defending and criticizing Trump. (Id. ¶¶ 37-39.)
On January 26, 2016, plaintiff appeared on a CNN cable television show to discuss Trump’s threat to boycott one of the Republican presidential primary debates unless FOX removed Megyn Kelly as a moderator. (Id. ¶¶ 45-46.) During her appearance, plaintiff characterized Trump as a “bad debater” and stated that he “comes off like a third grader faking his way through an oral report on current affairs” and was using the Megyn Kelly dispute with FOX as an excuse for avoiding the debate. (Id. ¶ 46.) The next day, during an on-air telephone call with the host of MSNBC’s Morning Joe program, Lewandowski referenced plaintiff’s comments about Trump, stating that “[t]his is the same person . . . who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn’t hired clearly she went off and was upset by that.” (Id. ¶ 49.)
On February 2, 2016, plaintiff again appeared on CNN along with a Trump supporter to discuss Trump’s claims that his campaign was self-funded and CNN’s investigation finding that one third of his campaign funds came from other sources. (Id. ¶ 50.) Plaintiff remarked on the show that “there had been a Trump Super PAC, [that] the campaign lied about it, and then shut it down,” as was reported in the news. (Id.) She also said that the campaign had approached several Republican billionaire donors, all of whom had declined to donate money to Trump. (Id.)
Some of Trump’s numerous Twitter followers responded to his tweets by attacking plaintiff with demeaning, sometimes sexually charged, comments and graphics, including insults aimed at her professional conduct, experience, qualifications, and her purported rejection by Trump. Also tweeted was an image of plaintiff with a grossly disfigured face, and a depiction of her in a gas chamber with Trump standing nearby ready to push a button marked “Gas.” (Id.)
Plaintiff commenced this action in April 2016, alleging that Lewandowski’s and Trump’s statements as set forth above defamed her, and that they constitute libel per se, as they accuse her of unprofessional conduct, and were intended to, and did, injure her reputation in her field and caused her to lose professional opportunities. (Id. ¶ 61.)
II. Discussion
It is well settled that “[i]n assessing the adequacy of a complaint under CPLR 3211 (a) (7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff The benefit of every possible favorable inference.’ ” (J.P. Morgan Sec. Inc. v Vigilant Ins. Co.,
1. General Considerations
A defamatory statement is “a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace” (Thomas H. v Paul B.,
Whether particular words are defamatory constitutes “a legal question to be resolved by the court in the first instance.” (Golub,
“Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable.” (Dillon,
2. Context is Key
Words that are challenged as defamatory “must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader.” (Aronson,
As context is key (Thomas H.,
3. Opinion
a. In General
The privilege protecting the expression of an opinion is rooted in the preference that ideas be fully aired. (Davis,
Privileged statements of opinion are either accompanied by the facts on which they are based, or do not imply that they are based on undisclosed facts. (Gross,
An asserted fact may be distinguished from a nonactionable opinion if the statement: (1) has a precise, readily understood meaning, that is (2) capable of being proved true or false, and (3) where the full context in which it is asserted or its broader social context and surrounding circumstances indicate to readers or listeners that it is likely fact, not opinion. (Davis,
i. Precise, Readily Understood Meaning
Words have been characterized as “imprecise” when they are “indefinite and ambiguous” (Parks,
By contrast, in Kaplan v Khan, during the course of a prayer meeting, the defendant called the plaintiff a “whore” and accused her of “running a house of prostitution.” The motion court found that the words had a “sufficiently precise meaning.” (
ii. Capable of Being Proved True or False
As noted supra (II [A] [3] [a] [i]), where a statement is subjective and imprecise, it is not susceptible of being proved true or false. {Live Face on Web,
iii. Full Context or Broader Social Context and Surrounding Circumstances
“[E]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.’ ” (Steinhilber,
Certain contexts may indicate whether a statement constitutes fact or opinion. An investigative article in the news section of the New York Times was held to be a context reflecting the factual nature of statements reported therein (Gross v New York Times Co.,
In addition, “[t]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a ‘freewheeling, anything-goes writing style.’ ” (Sandals Resorts Intl. Ltd. v Google, Inc.,
Similarly, comments made on television talk shows, given the “give and take” of the show, and the “spirited” verbal exchanges between the host and guest, and the “at times heated” “interplay with audience members,” are deemed nonactionable opinion. (Huggins v Povitch,
A purportedly defamatory statement’s broader social context and surrounding circumstances must also be analyzed in terms of the content of the statement “as a whole, its tone and appar
4. Defamation Per Se
As pertinent here, a statement that “suggests improper performance of one’s professional duties or unprofessional conduct” (Frechtman v Gutterman,
Some statements are actionable defamation per se because they discredit one in his chosen calling, such as
“to say of a physician that he is a butcher . . . , of an attorney that he is a shyster, of a school teacher that he has been guilty of improper conduct as to his pupils, of a clergyman that he is the subject of scandalous rumors, of a chauffeur that he is habitually drinking, of a merchant that his credit is bad or that he sells adulterated goods, of a public officer that he has accepted a bribe or has used his office for corrupt purposes.” (Celle v Filipino ReporterEnters. Inc., 209 F3d 163 , 180 [2d Cir 2000] [citations omitted]; Treppel v Biovail Corp.,2004 WL 2339759 , *9-10,2004 US Dist LEXIS 20714 , *31 [SD NY, Oct. 15, 2004, No. 03 Civ 3002 (PEL)].)
On the other hand, it has been held that calling a judge incompetent, accusing a former director of the State Lottery of “systematically cheating” the public, and describing a teacher who had received unearned pay while on sick leave as a “no-show” are nonactionable expressions of opinion. (Trump v Chicago Tribune Co.,
It is also well settled that being fired or removed from office, absent any insinuation of misconduct, does not imply professional misconduct or incompetence or otherwise impugn an individual’s integrity. {Aronson v Wiersma,
B. Contentions
In support of their motion, defendants argue that the statements in question, including Trump’s statement that she “begged” for a job and was rejected, constitute hyberbolic rhetoric, too vague to be defamatory. (NYSCEF Doc No. 15.)
The gravamen of plaintiff’s complaint is that Lewandowski, in a statement made on a talk show, and Trump, in two comments posted on Twitter, falsely represented that she had sought a job from them, was rejected, and thus made biased comments about Trump. (NYSCEF Doc No. 20 at 15-16, 20.) Plaintiff argues that by these statements, “[defendants, in
Plaintiff essentially acknowledges that the statements that she “went off,” “was upset,” and “went hostile,” constitute non-actionable speculation, hyperbolic rhetoric, and pure opinion. (Id. at 14.) She also does not argue that Trump’s tweeted insults, such as calling her “a real dummy,” “really dumb,” “major loser, zero credibility,” are anything other than opinion “piled on” to his comments. (Id. at 15.)
Rather, plaintiff’s defamation claims are based on defendants’ “deliberate fabrications” of “what they claim caused her to express the views she expressed, which was that she begged for a job and was turned down” (id. at 14), and “then exacted her revenge by attacking Trump on television” (id. at 15). Whether she sought the job and was rejected, she alleges, constitutes straightforward fact, and the statements that she “came to us” and “begged” for a job and was “turned down” are false. (Id. at 14.)
The truth, plaintiff asserts, is that she met twice with Le-wandowski, at defendants’ request, and decided not to pursue the position because of Lewandowski’s rude and unprofessional conduct during her second meeting with him. These false statements about her, plaintiff claims, were made in retaliation for her negative comments about Trump, and “for the deliberate purpose of impugning her integrity and neutralizing her negative commentary.” (Id. at 15.) She states that she not only sufficiently alleges that “her standing within her professional world and in the broader public community would tend to be damaged” by defendants’ false assertions that she was biased against Trump because she was rejected for a job (id. at 20), but also that
“in fact her professional standing suffered enormous damage, as she became damaged goods no longer invited by the networks to ply her trade . . . [and] she actually was exposed to hatred, contempt and aversion, and the libels induced an evil or unsavory opinion of her in the minds of millions of people”
(id.).
C. Analysis
Trump’s characterization of plaintiff as having “begged” for a job is reasonably viewed as a loose, figurative, and hyperbolic
Moreover, the immediate context of defendants’ statements is the familiar back-and-forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable. (See e.g. Jasmine C. Lee & Kevin Quealy, The Upshot, The 289 People Places and Things Donald Trump Has Insulted on Twitter: A Complete List, NY Times [digital ed], Dec. 6, 2016, http:// www.nytimes.com/interactive/2016/01/28/upshot/donald-trump-twitter-insults.html [accessed Jan. 8, 2017].) His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as “loser” or “total loser” or “totally biased loser,” “dummy” or “dope” or “dumb,” “zero/no credibility,” “crazy” or “wacko,” and “disaster,” all deflecting serious consideration. (Id.; see Technovate LLC v Fanelli,
And yet, the context of a national presidential primary and a candidate’s strategic and almost exclusive use of Twitter to
Nevertheless, consistent with the foregoing precedent and with the spirit of the First Amendment, and considering the statements as a whole (imprecise and hyperbolic political dispute cum schoolyard squabble), I find that it is fairly concluded that a reasonable reader would recognize defendants’ statements as opinion, even if some of the statements, viewed in isolation, could be found to convey facts. Moreover, that others may infer a defamatory meaning from the statements does not render the inference reasonable under these circumstances.
Thus, although the intemperate tweets are clearly intended to belittle and demean plaintiff, any reasonable reading of them makes it “impossible to conclude that [what defendants said or implied] . . . could subject . . . plaintiff! ] to contempt or aversion, induce any unsavory opinion of [her] or reflect adversely upon [her] work,” or otherwise damage her reputation as a partisan political consultant and commentator. (Nichols,
For all of these reasons, I observe, as did the court in Trump v Chicago Tribune Co., that New York courts have found “cases presenting] claims far more compelling than that advanced by plaintiff here ... to involve expressions of opinion entitled to full First Amendment protection.” (
Given this result, there is no need to address whether the challenged statements constitute defamation per se. In any event, while it is not disputed that a campaign employee first approached plaintiff about the position, a determination of what the parties thought during the interview process, and why and how the process ended requires inquiry into their subjective beliefs. Moreover, there is no dispute that after plaintiff’s second meeting with Lewandowski, neither she nor defendants pursued the matter any further, and she was not offered the position. Thus, defendants’ statements that they rejected plaintiff for a campaign position do not suggest that she improperly performed her professional duties, engaged in unprofessional conduct, or otherwise tended to injure her in her profession, that of a political commentator during a particularly raucous Republican presidential primary.
III. Conclusion
In light of the foregoing, and absent any authority for the proposition that the circumstances of this case render defendants’ statements an exception to what appears to be the law that they are nonactionable opinion, plaintiff fails to state a